Lawlessness hurting America's `war on terror'

Sep. 19, 2004. 01:00 AM
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Lawlessness hurting America's `war on terror'

LINDA MCQUAIG

Daraz Khan and a couple of friends were scrounging for scrap metal in the Afghan countryside when they were blown away by U.S. forces fighting the war on terror.

Khan was very tall, and the U.S. soldiers thought there was an off-chance he might be that other tall guy, Osama bin Laden.

The deaths, reported in the New York Times in February, 2002, didn't create much of a ripple in the West, where they were regarded as just an unfortunate side effect of the "war on terror." Mistakes happen; it was all for a good cause.

Of course, we in the West would understand if foreign troops invaded our territory and blew away our relatives in their keenness to hunt down someone else.

This sort of lawlessness — which seems all but invisible to us over here — is, of course, highly visible to those on the receiving end, and it helps explain the phenomenal growth of anti-American rage in that part of the world in the last couple of years.

As the "war on terror" enters its fourth year, with no end or even progress in sight, it's worth asking if things could have been done differently.

One option, which was apparently never even considered, would have been to follow the rule of law. Let's just imagine what might have happened if Washington had responded to the 9/11 atrocities by following international law, instead of cutting a swath of violence and lawlessness through Afghanistan and later Iraq.

It's long been forgotten, but in the weeks immediately following 9/11, the Taliban government in Afghanistan actually offered to hand over bin Laden if the U.S. provided proof of his involvement in the terrorist attacks.

Washington instantly rejected the offer. What right did that primeval, two-bit country have to demand proof from America?

But the Taliban had a point, as Michael Mandel, an Osgoode Hall law professor, points out in a provocative new book, How America Gets Away With Murder. Mandel notes that the Taliban's request for evidence was simply standard practice that any nation would follow when asked to extradite a criminal to another country. Oddly, then, it was the primitive leaders of the Taliban who, in this case at least, were following the rule of law.

Mandel also insists that the U.S. had an obligation under international law to seek a non-military solution. And the Taliban, for all its well-known defects, was keen to negotiate.

By the following month, with U.S. bombs falling on them, the Taliban leaders even dropped their demand for proof of bin Laden's guilt, and offered again to hand him over — for trial in a country other than the United States. Clearly, the U.S. could have negotiated whatever terms it wanted.

But again Washington flatly rebuffed the offer, and all hopes of a non-violent solution.

Instead, the U.S. decided to go get bin Laden itself, launching a war that killed thousands of Afghans, including civilians who simply happened to be in the wrong place or be the wrong height. Mandel argues that this was illegal under international law. "(O)ne is not allowed to invade a country to effect an arrest."

And, of course, the U.S. failed to get bin Laden. Which brings us back to the question of whether following international law would have been such a bad option.

Of course, it's possible that the treacherous Taliban would never have surrendered bin Laden. On the other hand, maybe it would have. If so, the world's most apparently dangerous terrorist might have been behind bars and out of commission these past three years. Such an approach would have also sent a message that the U.S. respects international law, which, ironically, would have undermined Al Qaeda's recruitment efforts.

Nothing would dampen Al Qaeda's campaign to turn the Islamic world against America more than an American government that not only preached democracy and the rule of law, but was also seen to practise these things.

Astonishingly, America's lawlessness — so offensive to millions around the world — barely registers as an issue in mainstream U.S. politics.

Both major parties seem to accept the notion that the U.S. has the right to operate as it chooses in the world.

The major lesson drawn from the fiasco in Iraq appears to be: Don't invade a country without a good post-war plan.

George Bush seems poised to be re-elected, largely on the mythology that he's a strong leader in dangerous times. He's finessed the nation's fear brilliantly.

But it's hard to believe that Americans themselves wouldn't be better off with fewer people around the world hating them, and bin Laden behind bars.

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